American Foundation for Equal Rights

Time Magazine: California’s Gay-Marriage Battle Heads for the Judge


One of the most important — and contentious — civil rights trials in a generation comes to a close later today in a San Francisco courtroom, when lawyers for two gay couples attempt to convince a federal judge to be the first to rule that the U.S. Constitution guarantees gays and lesbians the right to marry. Their opponents, backed by many of the most powerful religious voices in America, will argue that Californians got it right in 2008 when they voted to make gay marriage unconstitutional in their state.

The stakes couldn’t be higher for gay couples in California, who argue that the the referendum that approved what is popularly known as Prop 8 violated their most fundamental right, and has left them as second-class citizens. Meanwhile, the defenders of Prop 8 fear that a judgment against them will diminish the role of the traditional family — man, woman and their offspring — as the basic cornerstone of society. Prop 8 added language to the California constitution that expressly limits marriage to unions involving one man and one woman.

All those feelings will add to the electricity buzzing around the courtroom in at midday in California when Ted Olson, the former U.S. Solicitor General and Republican stalwart who shocked his fellow conservatives by bringing the case last year, opens nearly two hours of closing arguments. He’ll be followed by Charles Cooper, the Reagan-era Justice Department attorney hired by Prop 8′s supporters to defend the initiative.

No ruling is expected today, but already Chief Judge Vaughn Walker, a Republican appointee who is also gay, has tipped his hand at least this much: he’s determined to issue a ruling that will be as reversal-proof as possible. Last week, he issued a memo to lawyers on both sides filled with dozens of questions he wants them to be ready to answer when they appear today. They ranged from questions about human sexuality — what legal implications would there be if the evidence at trial proves female sexuality is more fluid than male? — to questions about the economic impact gay marriage could have on communities. If the opening statements in the case were any indication, he won’t hesitate to pepper the lawyers with questions as they attempt to close.

The extra scrutiny could matter a lot. Last week, as he prepared his final argument, Olson told TIME the case is certain to go the U.S. Supreme Court, no matter who wins in San Francisco. So what each side will be hoping to win by today’s argument is a head’s start in what will likely be a very long appellate race. And it’s a kind of highly intense verbal sparring where the details could have big impact. That’s true in part because there are so many ways for Walker to rule.

For instance, a ruling by Walker in favor of the two gay couples could pave the way for the legalization of gay marriage throughout the country — or it could have a much more limited impact. Walker could rule against Prop 8, for instance, even without giving gay marriage especially strong constitutional protections. He could simply say that the ballot initiative was simply too arbitrary in taking back rights that the California Supreme Court had already granted to gay couples there.

Read the full piece here.